February 6, 2013

Proposal: HSR Filing Automatically Withdrawn If Deal Termination Disclosed

Recently, as noted in this memo, the FTC proposed changed to its premerger notification rules related to the withdrawal of HSR filings. The proposed rules seek to formalize the existing procedures whereby an acquiring person may voluntarily withdraw a pending HSR filing and resubmit within two business days without paying an additional HSR filing fee – and to establish a “bright line” trigger for the automatic withdrawal of an HSR filing that is tied to the SEC’s disclosure requirements. In other words, it would establish a procedure for the automatic withdrawal of an HSR filing when a SEC filing is made announcing that a transaction has been terminated. While the former merely seeks to formalize existing procedures, the latter is an entirely new mechanism that may have negative repercussions for certain filing parties.